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October 16, 2017

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Opinion and Fair Comment Privileges

The right to speak guaranteed by the First Amendment to the U.S.
Constitution includes the right to voice opinions, criticize others,
and comment on matters of public interest. It also protects the use of
hyperbole and extreme statements when it is clear these are rhetorical
ploys. Accordingly, you can safely state your opinion that others are
inept, stupid, jerks, failures, etc. even though these statements might
hurt the subject's feelings or diminish their reputations. Such terms
represent what is called "pure opinions" because they can't be proven
true or false. As a result, they cannot form the basis for a defamation
claim.

This is not to say that every statement of opinion is
protected. If a statement implies some false underlying facts, it could
be defamatory. For example, stating that "in my opinion, the mayor
killed her husband" is not likely to be a protected opinion. Couching
false statements of fact as opinion or within quotes from other sources
generally won’t protect you either. Nor will trying to cover yourself
by saying that a politician “allegedly” is a drug dealer, or that your
neighbor said the politician “is a drug dealer,” or that in your
opinion, the politician is a drug dealer. A reader may well assume you
have unstated facts to base your conclusion on, and it would be a
defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not
necessarily outside the opinion privilege. If you state the facts on
which you are basing your opinion, and the opinion you state could be
reasonably drawn from those truthful facts, you will be protected even
if your opinion turns out to be incorrect. For example, if you were to
say "In my opinion, Danielle is failing out of school" it would likely
lead your readers to assume that there are some unstated facts you
relied on to draw your conclusion. Such a statement would not be
protected, as the privilege does not protect back door entry of facts
as "opinion" through innuendo. On the other hand, if you state "In my
opinion, Danielle is failing out of school because she is a blond and
the only thing I ever see her do at the library is check Facebook,"
this provides the reader with the information you are basing the
opinion on, and allows the reader to come to his own conclusion.

Compare the following two statements:

"During the last six months I've seen Carol in her backyard
five times at around 1:30pm on a weekday seated in a deck chair with a
beer in her hand. I think Carol must be an alcoholic."

"I think Carol must be an alcoholic."

The first example states true, non-defamatory facts upon which a
reasonable conclusion (that Carol is an alcoholic) is based, and also
emphasizes the limits of your knowledge (that you only saw Carol five
times). It would be protected as a statement of opinion. Under the
second example, readers would likely assume that there are unstated,
defamatory facts upon which your conclusion is based. Therefore it
would likely fall outside of the privilege.

Keep in mind that even if you state the facts you are relying
on for your opinion, but those facts turn out to be false, the
privilege will not apply. For example, if you say that "In my opinion,
Danielle is failing out of school because she failed biology," the
privilege would not apply if she got a C in biology.

To determine whether a statement is an opinion or a fact,
courts will generally look at the totality of the circumstances
surrounding the statement and its publication to determine how a
reasonable person would view the statement. Under this test, the
difference between an opinion and a fact often comes down to a
case-by-case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion

In general, facts are statements that can be proven true or
false; by contrast, opinions are matters of belief or ideas that cannot
be proven one way or the other. For example, "Chris is a thief" can be
proven false by showing that throughout his entire life Chris never
stole anything. Compare that statement with "Chris is a complete
moron." The latter is an opinion (or, technically, "a pure opinion"),
as what constitutes a moron is a subjective view that varies with the
person: one person's moron is not necessarily the next person's moron.
Put another way, there would be no way to prove that Chris is not a
moron. If a statement is a "pure opinion," it cannot be the basis for a
defamation claim.

Of course, it is not always easy to determine whether a
statement is a pure opinion. As we noted above, opinions that imply
false underlying facts will not be protected. For example, stating that
"Chris is insane" could be both a fact and an opinion. It could mean
Chris has been diagnosed with psychosis and needs to be hospitalized in
a mental institution; this could be proven false. It could also mean
that Chris has wacky ideas that one doesn't agree with, which is an
opinion. In determining which meaning the statement should be given,
courts often rely on context and common-sense logic (or to phrase it in
legalese, the "totality of circumstances" of the publication). For
example, if one called Chris insane in a forum post as part of a heated
argument over politics, the statement would likely be interpreted as an
opinion.

Some examples of protected opinions include the following:

Statements in the "Asshole of the Month" column in Hustler
magazine that described a feminist leader as a "pus bloated walking
sphincter," "wacko," and someone who suffers from "bizarre paranoia"
were protected opinion because the context of the magazine and column
made it clear that the statements were "understood as ridicule or
vituperation" and "telegraph to a reader that the article presents
opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

Statement in the New York Post that referred to the plaintiff
as a "fat, failed, former sheriff's deputy" was protected opinion
because it was hyperbole and had an "alliterative quality" with a
"rhetorical effect indicative of a statement of opinion." Jewell v. NYP
Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

Statements on a radio talk show that described the plaintiff
as a "chicken butt," "local loser" and "big skank" were not defamatory
because they were "too vague to be capable of being proven true or
false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

A cartoon of a noted evangelist leader fornicating drunk in
an outhouse with his mother because the parody was so outrageous it
could not "reasonably be understood as describing actual facts" about
Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that you can't make a statement an opinion
merely by prefacing it with "in my opinion." Saying that "in my
opinion, Alex stole ten dollars from the church collection basket"
would lead most listeners to conclude you had evidence that Alex had
indeed stolen the money, and that you intend the statement as one of
fact rather than opinion. The courts do not give protection to false
factual connotations disguised as opinions.

Context and the Totality of the Circumstances

In general, courts will look at the context and medium in which
the alleged defamation occurred. For example, a statement is more
likely to be regarded as an opinion rather than a fact if it occurs in
an editorial blog as opposed to a piece of investigative journalism.
The wider context may also provide a framework for the court: during
the McCarthy-era witch hunts of the 1950s, for example, courts
routinely held that referring to someone as a "Communist" was
defamatory; in the present day, "communist" has taken on a more
generalized (if still often derogatory) political meaning, and courts
would almost certainly find use of the word to be a protected opinion.

The Internet presents particular issues for the courts, as it
is a medium where the lack of face-to-face contact can often make
judging the actual meaning and context of a publication difficult.
Courts are likely to take into account the particular social
conventions of the Internet forum at issue in evaluating a statement's
context.

But much remains to be determined, such as how the courts
would handle the nature of many discussion forums. A 2001 case that
dealt with the opinion privilege is worth quoting at length as an
indication of the approach courts may well take in determining whether
an online posting is a statement of opinion or fact. In regards to a
post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the]
statements strongly suggest that the postings are opinion. The
statements were posted anonymously in the general cacophony of an
Internet chat-room in which about 1,000 messages a week are posted
about [the particular company]. The postings at issue were anonymous as
are all the other postings in the chat-room. They were part of an
on-going, free-wheeling and highly animated exchange about [the
particular company] and its turbulent history. . . . Importantly, the
postings are full of hyperbole, invective, short-hand phrases and
language not generally found in fact-based documents, such as corporate
press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

In short, the court concluded that "the general tone and context of
these messages strongly suggest that they are the opinions of the
posters." Id. at 1267. It is likely that other courts will take
a similarly broad view regarding Internet forums for purposes of the
opinion privilege.

To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

What is the common usage and specific meaning of the language used?

Is the statement verifiable? Can it be proven false?

What is the full context of the statement?

What are the social conventions surrounding the medium the statement occurred in?

Note that each state decides what is required to establish
defamation and what defenses are available, so you should review your
state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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